SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
May 13, 1968
THOMAS E. RODGERS, APPELLANT,
CHARLOTTE B. RODGERS, RESPONDENT
Appeal from two orders of the Supreme Court, Westchester County, dated June 26, 1967 and December 6, 1967, respectively, the former denying plaintiff's motion for a temporary injunction and the latter granting defendant's motion to dismiss the complaint.
Brennan, Acting P. J., Rabin, Benjamin, Munder and Martuscello, JJ., concur.
The action is for a permanent injunction to enjoin plaintiff's wife from instituting any proceeding against plaintiff in any jurisdiction other than the State of New York which, inter alia, may affect the parties' marital status. Plaintiff moved for a temporary injunction enjoining defendant from instituting any marital action, etc., in the State of Florida. In his affidavit submitted in opposition to defendant's subsequent motion to dismiss the complaint he requested that the relief sought by him in the action be modified so that defendant be restrained from proceeding in the State of Florida only. Injunctive relief should not be granted permanently to prevent a defendant from establishing a bona fide residence in any sister State although one of its purposes is to institute an action for divorce (Young v. Young, 26 A.D.2d 956). Furthermore, in our opinion a court is not authorized to enjoin a defendant from instituting a marital action in a particular sister State unless the out-of-State spouse has commenced such an action. Here the migratory wife had not actually instituted suit in an out-of-State court. We are familiar with the contrary rulings in Oltarsh v. Oltarsh (181 Misc. 255); Niver v. Niver (200 Misc. 993); and Boston v. Boston (205 Misc. 561); but we reject them as not controlling (see Garvin v. Garvin, 302 N. Y. 96; Hammer v. Hammer, 303 N. Y. 481; Pereira v. Pereira, 272 App. Div. 281). Where a complaint fails to allege a cause of action for a permanent injunction, a party is not entitled to a temporary injunction (Board of Fire Comrs. v. Windmill Farm Water-Works Corp., 225 N. Y. S. 2d 801).
Orders affirmed, with one bill of $10 costs and disbursements.
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